Avoiding the A-word - Granite Grok

Avoiding the A-word

There is currently an effort in Concord to add this to the New Hampshire constitution:  “The right to make personal reproductive medical decisions is inviolate and fundamental to the human condition. Neither the State nor any political subdivision shall infringe upon or unduly inconvenience this right.”  Regardless of how you feel about abortion, this is just an awful piece of legislation.

Let’s compare that wording to the wording we see in other constitutional provisions.

The first word that jumps out is infringed.  The federal and state governments are prohibited from infringing the right to keep and bear arms, but we’ve got thousands of laws that do it anyway.   Apparently bans, taxes, licenses, and permission slips aren’t infringements on a right.  So saying, in a constitution, that a right shall not be infringed is… would pointless be too strong?

And that doesn’t even take into account the giant loophole that follows it.  Once you set unduly inconvenienced as the bar that needs to be cleared, you might as well just cross out infringed.

How are we to decide what unduly inconvenienced means?  The federal and state governments are prohibited from unreasonable searches and seizures, and the 4th Amendment even spells out a procedure for checking reasonability: establish probable cause, get a warrant, search only in particular places for particular things, and so on. But apparently it’s not unreasonable to be stopped by the border patrol within 100 miles of a border; or to be searched by a government agent as a condition of boarding a plane; and so on.

Would you be unduly inconvenienced if you had pay a tax, or pass a test, or wait for a ‘cooling off’ period to elapse, or limit yourself to some number of procedures per year?  Again, it’s instructive to look at the kinds of limits that are routinely placed on gun ownership, and think about how they could be tweaked without reaching the level of unduly inconveniencing reproductive decisions.

If you look at Article 83 of the NH constitution, it says that ‘free and fair competition in the trades and industries’ is an ‘inherent and essential right’ of the people.  Surely an inherent and essential right is entitled to at least as much protection as an inviolate and fundamental right.

Article 83 also says that it is the state’s job to protect competition from monopolies that would tend to hinder or destroy it.

And yet, the state supreme court’s interpretation of that is almost exactly the opposite of its plain meaning, mandating the state to set up a tax-funded monopoly (the public school system) to destroy competition in the industry of education.  The lesson here is that when you ask for a right to be protected, you might end up with the opposite of what you ask for.

To put that another way, if you amend a constitution to say that a right is inviolate, the most likely outcome is the creation of a government bureaucracy to decide exactly how that right can be violated, by whom, and under what circumstances.

Moving on, the vague phrase personal reproductive medical decisions opens up all kinds of potential unintended consequences.

For example, cloning is reproductive.  So the decision to clone yourself would be a reproductive decision, and the state would be forbidden from interfering with that.

For that matter, having a baby so you can harvest its organs would also be reproductive. So the state wouldn’t be able to interfere with a decision to do that, either.

Given how courts like to stretch the meanings of words, it’s possible that ‘reproductive decision’ could be expanded to include killing some children you already have, especially if you’re doing that to clear the decks for more reproduction.

If you can change your mind 1 minute before birth, why not 1 minute after? Those are both reproductive decisions. And if you can change your mind 1 minute after, why not 1 day, or 1 month, or 1 year, or just before 1st grade? Eliminating any of those options interferes with your ability to make decisions about reproduction. So filicide, too, would be out of reach of the state.

I suppose labeling the decisions in question as personal and medical is supposed to make it clear that they can’t affect the rights of other persons.  But this skirts the entire source of the controversy, i.e., whether a fetus is a person.   If a fetus is a person, then abortion isn’t a personal decision.  So this resolves exactly nothing.

Quite apart from whether abortion should be legal or not, this amendment should be discarded out of sheer sloppiness of language, as well as a lack of recognition of the realities of judicial practice. And all because its authors lack the courage to just say what they want.  

You want to make sure abortion stays legal?  Just say ‘Abortion shall be legal’, and then let the courts turn that into whatever they want it to mean… which is what they would do anyway.

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